Krauthammer: ObamaCare is pretty much destroying the essence of insurance

posted at 1:21 pm on April 3, 2013 by Erika Johnsen

The administration’s rollout plans for their perfect ObamaCare timeline just keep getting punctuated with flaws and delays, from Sebelius oh-so-casually admitting that the overhaul is causing some insurance premiums to rise, to Congressional Democrats’ buyers’ remorse for the godawful medical device tax, to their recent decision to hold off on the promised small-business insurance-shopping option for a year. Whichever way you look at it, the telltale signs of bureaucratic incompetence are starting to peek through — and really, as Krauthammer outlined last night, how could it have gone otherwise? In a nutshell, ObamaCare basically dissolves the basic idea of insurance by requiring insurers to take on more risk and then slapping on arbitrary, government-dictated rates. When Democratic bureaucrats, in their infinite wisdom, have decided to try and remake one-sixth of the world’s biggest economy in their own image, it’s not going to go smoothly, and there are probably plenty of implosions still to come.

This is what happens when you have an administration that has the idea that it can reform, remake and completely re-regulate one sixth of the biggest economy on planet earth. I mean, I’m not surprised that the regulations are late and they are unclear. And they are also incredibly arbitrary. The waivers people get, thousands of them, who gets it? Who doesn’t? Somebody whom the government or the Democrats or liberals like? Somebody that is not liked? Are you going to get a waiver?

Look, when you take away the essence of insurance – insurance, you set a premium according to actuarial risk. So, if you are 60 your healthcare costs are six times what it is for a 20-year-old. So, your premiums are six times as much. But, the Congress in its wisdom has decided it should be three times instead of six. So once you do that you no longer have an insurance company. This is not insurance anymore. This is regulation, this is government dictated rates, like the electrical company and people are surprised that all of a sudden you have got all these things that aren’t working harmoniously as you would in a market.

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Medical providers, a.k.a. doctors and hospitals, brought it upon themselves. All they need to kill the debacle at the root is to stop accepting Medicare and Medicaid insurance, therefore relieving themselves from the slave collar of EMTALA (a law for which Ronaldus Maximus, hopefully, burns in Hell). Then they will be free to end the cost-shifting games, kick out John the crack addict, Juanita the illegal alien, and their genetically defective NICU-requiring spawn, and charge reasonable cash for all procedures.

“The lawsuit has been around for a while, but the Washington Times reports that a decision from the District Court is imminent, so it might be worth taking a quick look at the concept in advance of the decision. The argument, in a nutshell, is that ObamaCare being a tax, the Constitution requires it to “originate” in the House:

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

The lawsuit is brought by the Pacific Legal Foundation, which explained how ObamaCare came about:

[T]he Obama Administration’s health care law did not originate in the House; it originated in the Senate, when Senator Harry Reid “amended” a bill the House had passed by striking out all of its text and replacing it with the Senate-written bill that eventually became Obamacare…

No less an authority than Randy Barnett says: “If any act violates the Origination Clause, it would seem to be the Affordable Care Act.” The only way the violation could be more obvious is if the Senate hadn’t even bothered to use a shell bill, but had simply written a bill of its own without a shell…”

Medical providers, a.k.a. doctors and hospitals, brought it upon themselves. All they need to kill the debacle at the root is to stop accepting Medicare and Medicaid insurance, therefore relieving themselves from the slave collar of EMTALA (a law for which Ronaldus Maximus, hopefully, burns in Hell). Then they will be free to end the cost-shifting games, kick out John the crack addict, Juanita the illegal alien, and their genetically defective NICU-requiring spawn, and charge reasonable cash for all procedures.

Archivarix on April 3, 2013 at 1:27 PM

Lots of luck with that approach.

BTW, EMTALA did not require providing free medical care. It only requires providing emergency medical care regardless of ability to pay, then leaves the hospital to try to collect payment through the usual means of collection. Hospitals were free to stabilize the patient to get them past the emergency, then send them elsewhere.

The claim that EMTALA forced Romneycare and Obamacare is just an excuse. It would have been easier to reform EMTALA than to pass the abomination of Obamacare. If we accept the rationalization that EMTALA forced us to adopt Obamacare, we’re just letting the Democrats off the hook for what they so obviously already wanted to do.

My first thought in 2009 was that what was to become Obamacare would destroy the insurance companies by taking their customers away and by reducing payments/income resulting in very bad risk to benefit ratios. Once the big existing insurance companies go down, it will be virtually impossible for new companies to startup as meeting the start up costs and capital requirements in todays dollars will be overwhelmingly difficult. Just look at how hard it is for solar/wind power startups to compete with established oil/coal/hydroelectric power grids with their trillion dollar infrastructure.

Once the insurance companies are gone, all healthcare will be all government all the time. Uncle Sam gets to be the sole middleman, collecting dollars on both ends of the business and wasting trillions in between. Liberal utopia at last.

Remember when Republicans were racists for reciting this quote??? “I happen to be a proponent of a single payer universal healthcare plan” Wonder how many recent college grads working at State Farm, Allstate, Nationwide, Geico, etc voted for Obama? Liberal definition of racism = logic

If you just picture the majority of American voters as sucking their thumbs, and waiting for the State to tell them that they have to take a nappy, then you’ll understand why this is upon us, and why America will fall.

Thanks a load Roberts for saying bhocare is a ‘tax’ so it became constitutional! I will NEVER forgive you for your ruling, NEVER! That ruling did more harm to our Republic than most anything has ever done, IMO!
L

We should start a pool to pick which major ObamaCare “promise” will never be fulfilled.

Lots of sections of the law will never be implemented (because they can’t be), sure, and those are all good pool-pick candidates, but my own breakout pick is that ObamaCare will actually drive up the number of uninsured Americans instead of reducing it.

It’s too complicated for anyone to sign up, you take an sizeable tax risk if you misjudge your upcoming years income and, most of all, they’re basically paying you to skip the whole mess and not to sign up at all (“free shit” beneficiaries are allowed to skip paying premiums and sign up in the emergency room). Only really stupid people will sign up before the emergency room, when professional ObamaCare signer-uppers working for the hospital will do the paperwork for you and you’ll not have to pay. Easy-peasy pick right there, if you ask me, and the number of uninsured (which is already rising post law passage) will continue growing.

Thanks a load Roberts for saying bhocare is a ‘tax’ so it became constitutional! I will NEVER forgive you for your ruling, NEVER! That ruling did more harm to our Republic than most anything has ever done, IMO!
L

letget on April 3, 2013 at 1:40 PM

Just wait, he will outdo himself soon enough. The Obamacare ruling will look like child’s play by the time Roberts is done remaking the Republic.

BTW, EMTALA did not require providing free medical care. It only requires providing emergency medical care regardless of ability to pay, then leaves the hospital to try to collect payment through the usual means of collection. Hospitals were free to stabilize the patient to get them past the emergency, then send them elsewhere.

The claim that EMTALA forced Romneycare and Obamacare is just an excuse. It would have been easier to reform EMTALA than to pass the abomination of Obamacare. If we accept the rationalization that EMTALA forced us to adopt Obamacare, we’re just letting the Democrats off the hook for what they so obviously already wanted to do.

There Goes The Neighborhood on April 3, 2013 at 1:35 PM

The abomination that is EMTALA, essentially an act of legalized slavery, cracked the door to socialized medicine open. And once that door is opened, the government has enough bully-pulpit PR leverage to swing it as wide as needed. You are correct that EMTALA, by itself, did not force Obamacare in, but it did create the conditions in which sufficient percentage of the population clamored for fully-socialized healthcare model. The rest was up to Democrats who latched onto that clamoring and turned it into a legislative victory. The fact that their victory led to further destruction of the country does not, apparently, bother them in the least.

ENTERTAINMENT TONIGHT: [Jackie Kennedy] was also one of the first to have a president — husband — who is kind of a sex symbol. Like, people used to look at JFK, ‘Oh, he’s sexy.’ And then it was Bill Clinton, and now it’s your husband, Barack Obama is looked upon by women across the country as a sex symbol. What do you think?

MICHELLE OBAMA: He’s got a little swag, you know. That’s Okay. I mean, I’m proud of him. He’s a stylish, I think, man who is healthy and he’s smart and he’s passionate and he’s inspiring. And who wouldn’t fall in love with that, you know? It’s okay, yeah.

….and that’s without him giving them all free birth control yet. Imagine after ObamaCare it won’t be safe for him out in public with all the ladies wanting him.

Maybe I’m giving him more credit than he deserves, but when Justice Roberts declared it a tax, I wondered whether he was just being very clever.

MichaelGabriel on April 3, 2013 at 1:41 PM

You’re giving him more credit than he deserves.

Obamacare is here to stay and the electorate wants it. They love it. Just give them time to see how amazing it is. Nobody knows anything bad is going to happen. That’s just right-wing scare tactics. You’ll see.

first thought in 2009 was that what was to become Obamacare would destroy the insurance companies by taking their customers away and by reducing payments/income resulting in very bad risk to benefit ratios.

parke on April 3, 2013 at 1:36 PM

Health Insurance companies will eventually become government regulated and controlled zombie companies.

Speaking of Oprah. Where is she anyway? Did she have some big falling out with teh Obama? She helped him a lot and was crying with joy when he won his first term remember. Wonder what ever happened to her.

The United States will seek ways it can help French and African forces in Mali combat al Qaeda-linked rebels, U.S. Senator John McCain said on Tuesday during a visit to the West African country.

France launched a military offensive in Mali in January against Islamist militants threatening the capital. That drove the insurgents out of the towns they had seized, but they have since hit back with suicide attacks and guerrilla-style raids.

Western powers are concerned that Mali’s vast and lawless Saharan desert could become a launchpad for international militant attacks. Other European governments have ruled out sending combat troops but are backing a military training force. McCain said Washington wanted to offer some support too.

“We will work with the French forces, assess the French and allied forces on the ground, and see to what extent we can provide equipment, training, and technology to rid Mali of these rebels which include al Qaida,” McCain, who was a presidential contender in 2008, told reporters.

Yummmmy. Obama is going to be pissed because he’s planning on using that military/war money to fund the grand ObamaCare.

Speaking of Oprah. Where is she anyway? Did she have some big falling out with teh Obama?
happytobehere on April 3, 2013 at 1:56 PM

Yes she did, and afterwards I think she realized that she had helped the anti-Christ into power at the cost of her immortal soul, now she is retired from public life trying to find a way to regain her immortal soul.

Yes she did, and afterwards I think she realized that she had helped the anti-Christ into power at the cost of her immortal soul, now she is retired from public life trying to find a way to regain her immortal soul.

Yes she did, and afterwards I think she realized that she had helped the anti-Christ into power at the cost of her immortal soul, now she is retired from public life trying to find a way to regain her immortal soul.

SWalker on April 3, 2013 at 2:03 PM

Gee. Maybe she should sit down with Dr. Phil and chat about it or something.

Outside of my own 2 boys in their 20s, I LMAO when I ready the youth will be the ones ultimately getting screweled disproportionately paying more, even though much less of a risk..couldnt happen to a better crowd, the same ones that hoisted this Pop Queen onto us….soak in the sewage you voted for..

Charles K is a smart guy, but it wasn’t Obamacare that destroyed insurance, it was THINKING YOU COULD GET ANYTHING AND EVERYTHING PAID FOR REGARDLESS OF RISK. This is what we now have, NO RISK “INSURANCE”

- employers should NOT be the mechanism for delivering health insurance, it should be by FAMILY / INDIVIDUAL. Just like car insurance

Obamacare was the nail in the coffin, but the coffin had been built a long time ago.

Actually I’m developing a sense that they don’t understand that they are responsible for these things called the “details of implementation.”

Remember, Zero sees himself a “concept” guy. All overlords are like that. They issue decrees or fiats. The “little people” are expected to turn their concepts into reality. Their dreams. pipe dreams and in choom dreams as the case may be.

This abomination was never actually thought out or architected. The overload merely waves his hand around and says, “someone will figure that out when the time comes. Don’t worry about that now.”

They found a way to force their socialist wet dream on us, even though 80% of us didn’t want it. What do they care? Things don’t work here the way they do in Cyprus, pResisdent Zero.

Thanks a load Roberts for saying bhocare is a ‘tax’ so it became constitutional! I will NEVER forgive you for your ruling, NEVER! That ruling did more harm to our Republic than most anything has ever done, IMO!
L

letget on April 3, 2013 at 1:40 PM

Though I disagree, vehemently, with Roberts’ opinion, saying the mandate was a tax most certainly did not make it constitutional. All revenue bills must originate in the House. This is now a revenue bill thanks to the Supreme Court and CJ Roberts, and it originated in the Senate. Now, that’s unconstitutional. See reference to the lawsuit currently pending, referred to above.

Hospitals were free to stabilize the patient to get them past the emergency, then send them elsewhere.

There Goes The Neighborhood on April 3, 2013 at 1:35 PM

That only works if “elsewhere” is willing to take the patient. Often, they’re not.

I’ve read more than one story in local newspapers here about U.S. hospitals stuck providing round-the-clock care for comatose illegal alien patients whose home country (in most cases, Mexico) refuses to take them back.

Hospitals face a similar problem with U.S. citizen deadbeat patients. That’s why we had those “patient dumping” stories a few years ago, in which California hospitals were taking homeless patients with chronic health issues (usually drug and alcohol related) and dumping them out into the streets, usually late at night. Some hospitals tried to prevent poor and homeless people from ever getting admitted to the hospital in the first place, which is what Michelle Obama was doing in Chicago (steering the poor into free clinics so they wouldn’t end up in the U of Chicago ER).

Read an article the other day that said there used to be 600 charity hospitals in the U.S. that provided care for the indigent. Today there are zero. Because of the government. Yet the poor and medically needy are still with us, and they’re getting worse care than ever. Because of the government.

Roberts said Obamacare was a Tax and as a tax it should have originated in the House.

workingclass artist on April 3, 2013 at 2:36 PM

It did originate in the House as a shell bill. That’s good enough. Besides Roberts is a horrible judge, he wanted to find a way to keep Obamacare “constitutional” and he found a way that no one on Earth argued for. He can and will find another way to uphold this monstrosity if need be.

You’re seriously reaching here. I understand, you’re trying to save the country and all, but it’s over. Obamacare is here to stay.

Thanks a load Roberts for saying bhocare is a ‘tax’ so it became constitutional! I will NEVER forgive you for your ruling, NEVER! That ruling did more harm to our Republic than most anything has ever done, IMO!
L

It did originate in the House as a shell bill. That’s good enough. Besides Roberts is a horrible judge, he wanted to find a way to keep Obamacare “constitutional” and he found a way that no one on Earth argued for. He can and will find another way to uphold this monstrosity if need be.

You’re seriously reaching here. I understand, you’re trying to save the country and all, but it’s over. Obamacare is here to stay.

happytobehere on April 3, 2013 at 2:49 PM

I’m wondering though if HR 3590 was a revenue raising bill. Shell bills happen, but I don’t think the Senate can turn a non-revenue bill into a revenue bill by way of the shell process.

But I think you are right. Despite our best efforts, Roberts isn’t going to reverse himself now, even on a matter of Constitutionality different from the basis for his prior ruling. That’s especially true when you consider that he looked for any way to make ObamaCare Constitutional in order to preserve “his court’s legacy”. If it was good for his perceived legacy then, then it still is, and he isn’t going to change his mind.

If you just picture the majority of American voters as sucking their thumbs, and waiting for the State to tell them that they have to take a nappy, then you’ll understand why this is upon us, and why America will fall.

OhEssYouCowboys on April 3, 2013 at 1:38 PM

Americans ought to be required to watch three hours of The Rifleman on AMC every Saturday morning. To too many, it might seem like TV from a foreign country, but it contains many lessons they would do well to learn. Lucas McCain was definitly pro-Second Amendment.

One might be tempted to argue that the welfare state is the result of breakdown in societal “norms,” but I would argue that Europe proves otherwise. In the UK, for example, the real establishment of the welfare state – during the Attlee government – preceded societal breakdown by probably 2 decades. It is the addiction of welfare and dependency that destroys the family and the individual. They may become self-perpetuating, but it has been, in many cases, government that has driven the societal changes rather than the so-called ’60s liberation or other ‘social revolutions.’

Americans ought to be required to watch three hours of The Rifleman on AMC every Saturday morning. To too many, it might seem like TV from a foreign country, but it contains many lessons they would do well to learn. Lucas McCain was definitly pro-Second Amendment.

BuckeyeSam on April 3, 2013 at 3:07 PM

Remember the show where the blacksmith became the acting Sheriff, and forced everybody to surrender their weapons, while in town? It led to near disaster – and I think that that was the point they were trying to make.

The Rifleman was sort of the western version of Leave It To Beaver. Every show had a life lesson.

It did originate in the House as a shell bill. That’s good enough. Besides Roberts is a horrible judge, he wanted to find a way to keep Obamacare “constitutional” and he found a way that no one on Earth argued for. He can and will find another way to uphold this monstrosity if need be.

You’re seriously reaching here. I understand, you’re trying to save the country and all, but it’s over. Obamacare is here to stay.

happytobehere on April 3, 2013 at 2:49 PM

I’m wondering though if HR 3590 was a revenue raising bill. Shell bills happen, but I don’t think the Senate can turn a non-revenue bill into a revenue bill by way of the shell process.

gravityman on April 3, 2013 at 3:03 PM

The House bill was a tax credit not a revenue raising bill.

The Senate gutted it all, replacing it with Obamacare and made it a revenue raising bill.

The LIV that voted for Obama because he was young and cool couldn’t be bothered with this knowledge. It was beyond their public education and too complicated to understand. They were too busy texting their BFF’s and swooning over the Bieb’s. 40 years from now they’ll wake up and wonder WTF happened? I’ll probably be gone and unable to tell them you got what you voted for.

But I think you are right. Despite our best efforts, Roberts isn’t going to reverse himself now, even on a matter of Constitutionality different from the basis for his prior ruling. That’s especially true when you consider that he looked for any way to make ObamaCare Constitutional in order to preserve “his court’s legacy”. If it was good for his perceived legacy then, then it still is, and he isn’t going to change his mind.

gravityman on April 3, 2013 at 3:07 PM

Roberts said Obamacare was a Tax (Obama admin. argument) and as such Congress could legislate it.

If Roberts also rules that as a Tax it did not originate in the House but was created in the Senate he doesn’t reverse himself.

Roberts said Obamacare was a Tax (Obama admin. argument) and as such Congress could legislate it.

If Roberts also rules that as a Tax it did not originate in the House but was created in the Senate he doesn’t reverse himself.

The comment thread at Patterico’s is an interesting one on the issue.

workingclass artist on April 3, 2013 at 3:21 PM

I thought the Obama admin skipped the tax argument altogether (or at the most made only very brief reference to it). My recollection of the post-decision autopsy was that no one could figure out how Roberts could base his finding on an argument that Virelli(sp?) never made. Or am I not remembering that correctly?

I didn’t mean to imply that Roberts would actually reverse his own prior ruling. What I meant was that his opinion seemed to stretch to find any way he could to make the law constitutional for reasons of legacy not legality. And therefore, he is not likely to make another ruling which makes the law unconstitutional after he already twisted himself in knots to find it constitutional, especially given that his twisting wasn’t done for legal purposes in the first place. He’ll twist again if he has to in order to continue to rule it constitutional, I suspect.

Roberts said Obamacare was a Tax (Obama admin. argument) and as such Congress could legislate it.

If Roberts also rules that as a Tax it did not originate in the House but was created in the Senate he doesn’t reverse himself.

The comment thread at Patterico’s is an interesting one on the issue.

workingclass artist on April 3, 2013 at 3:21 PM

I thought the Obama admin skipped the tax argument altogether (or at the most made only very brief reference to it). My recollection of the post-decision autopsy was that no one could figure out how Roberts could base his finding on an argument that Virelli(sp?) never made. Or am I not remembering that correctly?

I didn’t mean to imply that Roberts would actually reverse his own prior ruling. What I meant was that his opinion seemed to stretch to find any way he could to make the law constitutional for reasons of legacy not legality. And therefore, he is not likely to make another ruling which makes the law unconstitutional after he already twisted himself in knots to find it constitutional, especially given that his twisting wasn’t done for legal purposes in the first place. He’ll twist again if he has to in order to continue to rule it constitutional, I suspect.

I wish that were not the case.

gravityman on April 3, 2013 at 3:32 PM

Obama admin. argued it was a tax and then backpedaled later and Roberts questioned that during oral arguments as I recall.

I never bought the Roberts legacy thingy anyway…I think that was a media meme.

He ruled narrowly that it was a tax and that Congress had the constitutional authority to legislate the tax.

If Roberts decides that as a tax it is a creation of the senate since they completely gutted the shell from the house it would in substance originate in the senate, not the house.

It’s interesting to follow the lawyers,students and court junkie threads on the case.

The Supreme Court has occasionally ruled on origination clause matters, adopting a definition of revenue bills that is based on two central principles that tend to narrow its application to fewer classes of legislation than the House: (1) raising money must be the primary purpose of the measure, rather than an incidental effect; and (2) the resulting funds must be for the expenses or obligations of the government generally, rather than a single, specific purpose.

Now that is interesting.

It’s almost impossible to argue that ACA fits either one of those criteria, assuming SCOTUS holds to it’s own precedent on classifying what is a “revenue bill” and therefore subject to the Origination Clause.

Obama admin. argued it was a tax and then backpedaled later and Roberts questioned that during oral arguments as I recall.

workingclass artist on April 3, 2013 at 3:45 PM

I think Roberts brought up the idea of the tax to the Obama lawyer during oral arguments. The lawyer acted evasive as to not step in a politically troubling spot (Obama appearing to raise taxes) but agreed tentatively with Roberts idea.

I might be wrong in my memory though.

Regardless, Roberts is making this thing stick no matter what. He’ll find some absurd excuse if it comes to that.

It’s interesting to follow the lawyers,students and court junkie threads on the case.

I guess we just have to see how it winds it’s way though the courts.

workingclass artist on April 3, 2013 at 3:45 PM

If you have any additional interesting links for those readings, I would enjoy reading some commentary from lawyers on this case. I am reading through the Patterico thread now.

gravityman on April 3, 2013 at 3:55 PM

Great legal blog here:

“Since June, the Obama Administration has been spinning the Supreme Court’s decision as if it had won the case and upheld the Individual Mandate. In fact, that did not happen. Five justices declared the Individual Mandate—the provision forcing Americans to buy insurance whether they want to or not—to be unconstitutional. Chief Justice Roberts went on to declare that Congress could impose a tax penalty on people who failed to buy insurance—but only because that penalty was relatively modest. If it became severe enough to be essentially the same as a Mandate, Roberts explained, he would have to findthat unconstitutional as well. And, of course, such a tax would have to satisfy other constitutional requirements, including the Origination Clause, to be valid.

Contrary to what the Obama Administration and its allies have claimed, the government did notwin the Obamacare case. Nor is the battle over. PLF’s defense of the Constitution has only just begun.

You can read our new complaint here, and learn more about the case at our case page and through this litigation backgrounder…

But what about the constitutionality of the Act’s “tax”? The Constitution provides that “all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.” Yet the Patient Protection and Affordable Care Act—including its monetary penalties for failing to purchase health insurance—did not originate in the House of
Representatives.

The founding fathers viewed the Origination Clause as a crucial protection for American freedom. They thought it important that the power to tax be kept as close as possible to the people’s representatives—members of the House, who are elected every two years by local districts. This would give the voting public the strongest possible control over the taxing power, which the founders rightly saw as prone to dangerous abuse.

But as it was drafting the Act in 2010, Congress used a procedural maneuver called a “shell bill,” in which the Senate took a bill that had already been passed by the House, and amended it to strike out all of its language and replace it entirely with new language. The bill—H.B. 3590—began as the “Service Members Home Ownership Act of 2009,” introduced in September, 2009.48 That bill was passed by the House and sent to the Senate in October, 2009. But on November 19, 2009, Senate Majority Leader Harry Reid submitted an “amendment” which struck out everything in the bill and replaced it with what became the Patient Protection and Affordable Care Act. That Act contains 17 separate revenue provisions, including a dozen new taxes estimated to increase federal revenue by $486 billion by 2019.

Federal courts have reviewed cases involving Origination Clause challenges, but none has ever involved as extreme an example of the strike-and-replace procedure used in passing the Act. In Flint v. Stone Tracy Co., the Supreme Court upheld the constitutionality of a bill in which the Senate had added a tax increase through an amendment to a House bill that had originally eliminated an inheritance tax. And in Rainey v. United States, the Court allowed the Senate to add a tax to a tariff bill that had originated in the House. But in United States v. Munoz-Flores, a 1990 case, the Court indicated that it would not allow Congress simply to ignore the Origination Clause. “Although the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve this Court of its responsibility to consider constitutional challenges to congressional enactments.”

If any act violates the Origination Clause, it would seem to be the Affordable Care Act. The Supreme Court has never approved the “strike-and-replace” procedure the Congress employed here. This challenge might be a good opportunity to discover whether the Origination Clause is part of the “Lost Constitution…”

But in United States v. Munoz-Flores, a 1990 case, the Court indicated that it would not allow Congress simply to ignore the Origination Clause. “Although the House certainly can refuse to pass a bill because it violates the Origination Clause, that ability does not absolve this Court of its responsibility to consider constitutional challenges to congressional enactments.”

The Munoz-Flores case is an interesting one actually. If I understand Scalia’s writing in the majority opinion, it was not up to the Court to decide if a bill passed as a House bill and sent to the President’s desk for signature violated the Orgination Clause, under the assumption that if both houses passed it and sent it to the President then it was a defacto representation by Congress that the bill passed in accordance with the Origination Clause. Essentially, if the House sends it to the President as a “HJR” (House Joint Resolution) rather than a “SJR” (Senate Joint Resolution) then the Court didn’t have the authority to countermand the House assertion of the bill’s origin.

But he also seemed to say that it didn’t completely absolve the Court of the right to review Origination Clause case. It appeard that his opinion was that the Courts could review either a SJR (a bill claimed by Congress to originate in the Senate) to determine if it was a “bill to raise revenue” and therefore violated the Origination Clause, or either an HJR or SJR to determine if it was a “bill to raise revenue” at all.